FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53329/99 by Lalka Raichova TOEVA against Bulgaria

The European Court of Human Rights (First Section), sitting on 9 Septrember 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. Hajiyev , judges , and Mr S. Nielsen , Registrar ,

Having regard to the above application lodged on 22 June 1999 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Lalka Raichova Toeva , is a Bulgarian national who was born in 1961 and lives in the village of Lozno .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s accusations against Mr B.

On 26 May 1993 the applicant filed a complaint with the District Prosecutor ’ s Office accusing Mr B. of having threatened her with a hunting rifle and also of having raped her . Mr B. was apparently a former police officer while the applicant was apparently a teacher in the local school .

The applicant alleged, inter alia , that she was drugged and raped by Mr B. in the early hours of one morning at the beginning of January 1993, but she could not remember the exact date. She also alleged that as a result she had conceived and had to have an abortion. Separately, the applicant claimed that Mr B. had threatened her with a hunting rifle.

The applicant and Mr B. were related – the applicant ’ s husband and Mr B. ’ s wife being brother and sister. Their families shared the same house – Mr B. lived with his family on the first floor, while the second floor was occupied by the applicant ’ s family. The ir parents-in-law also lived on the first floor of the house.

On an unspecified date a preliminary investigation was opened by the District Prosecutor ’ s Office.

On 11 June 1993 a search was conducted on the premises occupied by Mr B. ’ s family, but no hunting rifle was found n or any other evidence corroborating the applicant ’ s accusations.

The investigative authorities interviewed a number of witnesses, primarily persons related to Mr B. and the applicant. The witnesses stated that the ir families did not get along. They also maintained that Mr B. had never owned a hunting rifle. The witnesses denied that there was a possibility that a rape could have taken place in the house without anyone hearing anything. Apparently, the house was very old and the witnesses maintained that any movement or scuffle would have been heard by the other inhabitants , especially in the early hours of the day when it is otherwise very quiet .

O nly the applicant ’ s husband partly corroborated her accusations . He maintained that Mr B. had previously owned a hunting rifle with which he had threatened him in 1985 ‑ 86 and, separately, that as a result of the rape his wife had to have an abortion.

Mr B. claimed that he had never owned a hunting rifle and that he did not rape the applicant. He state d that about five years earlier for a short period of time his brother had given him a hunting rifle for safekeeping, but that it was sold soon thereafter.

On 12 July 1993 the District Prosecutor ’ s Office terminated the preliminary investigation against Mr B. because of lack of evidence. In coming to its decision the District Prosecutor ’ s Office relied on the evidence and testimonies collected, the results of the conducted house search and the apparent failure by the applicant to substantiate her accusations .

There is no indication that the applicant appealed against the decision.

2. The criminal proceedings against the applicant

On an unspecified date Mr B. initiated a private criminal prosecution against the applicant for libel based on the accusation s she had filed against him. On an unspecified date t he action was apparently rejected by the District Court and the matter was referred to the District Prosecutor ’ s Office for possible criminal prosecution.

A preliminary investigation was opened by the District Prosecutor ’ s Office on 3 August 1994 .

On an unspecified date the applicant was charged with falsely incriminating, before a competent authority, another person of having committed a n offence . The offence carried a possible sentence of up to five years ’ imprisonment and a public reprimand. A restriction was also apparently imposed on the applicant not to leave her place of residence without authorisation from the Prosecutor ’ s Office.

Thereafter an undetermined number of investigative procedures were performed. On an unspecified date the applicant requested the investigative authorities to interview certain witnesses who would allegedly corroborate her accusations against Mr B. On 15 June 1995 the investigator in charge of the investigation refused on the grounds that the witnesses the applicant wanted questioned were not in a position to add any new relevant evidence to the case and none in particular that c ould exonerate her .

In the course of the preliminary investigation it was established that the applicant had an abortion on 1 April 1993 . The applicant ’ s husband was apparently unaware of this at the time. Based on the applicant ’ s medical records it was ascertained that the period of conception was between 17 February 1993 and 10 March 1993 . It was also established that initially the applicant had claimed that the father was a teacher from her village , then a person from a nother town and finally, after her husband found out about the abortion, that Mr B. had raped her.

On 20 September 1995 the District Prosecutor ’ s Office terminated the preliminary investigation against the applicant in respect of the charge that she had falsely incriminated Mr B. of having threatened her with a hunting rifle . It is unclear when and if this decision was served on the applicant.

On the same day , 20 September 1995 , an indictment for falsely incriminating Mr B. , before a competent authority, of having committed a serious offence (rape) , was submitted against the applicant to the District Court.

It is unclear how many court hearings were subsequently conducted and when. Apparently the applicant refused to testify and give evidence before the court.

By judgment of 9 March 1998 the District Court found the applicant guilty as charged. The court found, inter alia , that in view of the medical evidence that the applicant had conceived sometime between 17 February 1993 and 10 March 1993 it was impossible that Mr B. had raped her in early January 1993 and that she had conceived as a result thereof . The accusations against Mr B. could not therefore be true and the applicant had evidently been aware of this at the time she had made them on 26 May 1993 before the District Prosecutor ’ s Office .

In determining her sentence, the court noted that Article 286 of the Criminal Code, which applied to the applicant ’ s actions, had been amend ed on 8 August 1997 . The paragraph relating to false incriminati on of a person for a “ serious offence ” had been repealed . All actions of false incrimination, regardless of the alleged offence, subsequently fell to be examined under the general provision of false incrimination , the applicable sentence for which had been increased . The District Court compared the two regimes and the sentences they entailed in order to determine the more favourable for the applicant . The court found that the old regime was more favourable as it provided for a less severe punishment and applied the repealed text of Article 286 § 2 of the Criminal Code , as in force before 1997 . T he applicant received a suspended sentence of 2 years ’ imprisonment and a public reprimand.

The restriction imposed on the applicant not to leave her place of residence without authorisation from the Prosecutor ’ s Office was apparently lifted.

On an unspecified date the applicant appealed on points of fact and law . She claim ed that the District Court had failed to co llect all the relevant evidence, that its judgment was unreasoned and not in conformity with the applicable law. The applicant did not appeal on points of procedure. She did not present any new evidence, nor did she seek witnesses to be re-examined.

On an unspecified date the applicant requested the police to provide her with certain evidence. On 22 May 1998 the police refused , stating that the request had to come through “ proper channels ” . Apparently the applicant did not thereafter request the Regional Court to obtain any such evidence from the police.

On 14 October 1998 the applicant retained an attorney to represent her before the Regional Court in connection with her appeal and the hearing of the same day.

By judgment of 18 November 1998 the Regional Court dismissed the applicant ’ s appeal and upheld the lower court ’ s judgment. The Regional Court analysed all possible grounds for appeal, including procedural ones, even though they were not expressly referred to by the applicant in her appeal. It found, inter alia , that the District Court had collected and analysed all the relevant evidence and witness testimonies which clearly showed that on 26 May 1993 the applicant had fal sely incriminated Mr B. before the District Prosecutor ’ s Office of the serious offence of rape . It also found that there were no procedural violatio ns, that the lower court ’ s conclusions were well substantiated and its judgment well reasoned .

On 12 December 1998 a n appeal on points of law was filed by the applicant ’ s attorney, allegedly acting on her behalf. The applicant did not appeal on points of procedure , but did have complaints relating to the facts of the case . The grounds of the appeal were that (a) the Regional Court had failed to analyse and respond to the applicant ’ s claims of deficiencies in the District Court ’ s judgment; (b) there was insufficient evidence that the applicant had committed the offence ; (c) the Regional Court had failed to establish whether or not Mr B. had ever owned a hunting rifle.

A hearing on the cassation appeal was held on 15 March 1999 . T he applicant apparently participated without the assistance of her attorney.

By judgment of 22 March 1999 the Supreme Court of Cassation dismissed the applicant ’ s appeal and upheld the lower court ’ s judgment. T he court noted that at this stage of the proceedings no new evidence could be presented and that it could not address the complaints relating to the facts of the case . It also found that there was sufficient evidence that the applicant had committed the offence for which she had been convicted . In respect of the claimed violations on points of law, the court found them to be un substantiated, because, inter alia , (a) both the investigative authorities and the courts had collected and accurately analysed the relevant evidence and witness testimonies; (b) the evidence clearly demonstrated that the applicant had committed the offence by filing her complaint on 26 May 1993 with the District Prosecutor ’ s Office; (c) the courts had delivered well substantiated and well reasoned judgment s , detailing their arguments and analyse s; (d) the courts had correctly applied Article 286 § 2 of the Criminal Code. Finally, the court noted that the applicant had not alleged any procedural violations as a basis for her cassation appeal and, therefore, did not address any such .

The applicant subsequently attempted to reopen the criminal proceedings against her, apparently on the basis that the courts had failed to establish whether Mr B. had ever owned a hunting rifle. On 21 October 1999 and later again on 3 April 2000 the Prosecutor ’ s Office refused , stating, inter alia , that the applicant had never been indicted n or tried for falsely incriminat ing Mr B. of having threatened her with a hunting rifle . T his matter was therefore not relevant to the proceedings she wanted reopened.

3. The civil proceedings against the applicant

On an unspecified date Mr B. brought an action against the applicant for damages resulting from the false incrimination.

The applicant requested that the District C ourt stay the proceedings pending the outcome of the proceedings before the Court of Human Rights .

By judgment of 27 July 2000 the District Court found partially in favour of Mr B. and awarded damages, together with interest and expenses. The court found, inter alia , that as a result of the accusations Mr B. had been thrown out of the house by his parents- in-law, had been depressed and disturbed by the investigation against him, his marriage had been on the verge of collapse and the planned marriage of his second daughter had been almost called off .

The court dismissed the request of the applicant to stay the proceedings, because it found that the proceedings before the Court of Human Rights were not a viable ground for such suspension.

It is unclear whether the applicant appealed.

4. The criminal libel proceedings

On 10 March 1998 the local newspaper “Nova Bulgaria ” published an a rticle reporting on the criminal proceedings against the applicant under the title “ Lalka of Lozno pretended that she was raped” (“ Лалка от Лозно се направила на изнасилена ”). It briefly described the facts of the case and the findings of the District Court as set out in its judgment of 9 March 1998 .

On an unspecified date the applicant initiated a private criminal prosecution for libel against the journalist who wrote the article. The applicant also sought damages. She claimed, inter alia , that the a rticle was defamatory in nature as it report ed on facts which were still in dispute – the judgment of the District Court having been appealed and not having entered into force at the time.

By judgment of 9 June 1999 the District Court acquitted the journalist , dismissed the applicant ’ s private criminal prosecution and the action for damages . The court found , inter alia , that the journalist had not made any defamatory statements as she had simply reported the facts of the case as set out in the judgment of the District Court of 9 March 1998 . The fact that the judgment had not entered into force at the time was considered irrelevant because judgments were found to be open to public scrutiny and comment , irrespective of whether they were appealed or not. In addition, the court noted that the applicant ’ s conviction had subsequently been upheld by the Regional Court and the Supreme Court of Cassation.

On 28 July 1999 the applicant appealed. It is unclear when the appeal and the case file were transferred from the District to the Regional Court .

On 11 November 1999 the president of the Regional Court assigned the hearing of the appeal to a court panel and set a hearing date for 16 December 1999 . The applicant participated at the hearing .

By final judgment of 20 December 1999 the Regional Court upheld the judgment of the District Court of 9 June 1999 on grounds similar to those contained in the latter ’ s judgment. The judgment referred to a court hearing having been conducted on 23 September 1999 rather than on 16 December 1999 .

B. Relevant domestic law

1. The Criminal Code - false incrimination

Article 286 of the Criminal Code provided, until 8 August 1997 , the following:

“(1) [A person] who, before a competent authority, incriminates another of [having committed] an offence , while knowing that that person is innocent or presents false evidence against him, shall be sentenced for false incrimination to imprisonment of up to three years and a public reprimand.

(2) [In case of] false incrimination for serious offences the [perpetrator] shall be sentenced to imprisonment of up to five years and a public reprimand.

(3) If the [person] falsely incriminated is criminally charged the [perpetrator] shall be sentenced to imprisonment: in the case of § 1 - of up to five years, and in the case of § 2 - from one to five years.”

On 8 August 1997 the provision was amended . Thereafter, § 1 envisaged a more severe punishment of “imprisonment from one to six years and a public reprimand” , § 2 was repealed and the paragraphs were renumbered . After 8 August 1997 t he relevant parts of Article 286 of the Criminal Code provide the following:

“(1) ... shall be sentenced for false incrimination to imprisonment from one to six years and a public reprimand.

(2) If the [person] falsely incriminated is criminally charged the [perpetrator] shall be sentenced to imprisonment from one to ten years.”

2. The Criminal Code - criminal libel

The relevant parts of Article 147 of the Criminal Code, as in force at the relevant time, provided the following:

“(1) [A person] who ... [falsely] incriminates [another] shall be sentenced for criminal libel to imprisonment of up to one year or a fine of up to BGN 5,000 and a public reprimand.

(2) The perpetrator shall not be punished if the truthfulness of ... the incrimination is proven.”

Paragraphs 1 and 2 of Article 148 of the Criminal Code, as in force at the relevant time, provided the following:

“(1) For slander

...

2. disseminated through a printed medium ...

...

(2) For criminal libel committed under the conditions of the preceding paragraph ... the sentence shall be imprisonment of up to three years and a public reprimand.”

3 . The Code of Criminal Procedure - court appointed attorney

The relevant part Article 70 of the Code of Criminal Procedure provided, up to 1 January 2000 , the following:

“ (1) The p articipation of a defence attorney in criminal proceedings is mandatory when :

...

3. the case is for an offence envisaging ... imprisonment of at least ten years ;

...

(3) Where the participation of a defence attorney is mandatory, the respective authority shall be obliged to appoint as defence attorney a person practising the legal profession. ”

4. The Code of Criminal Procedure - scope of review

Article 313 of the Code of Criminal Procedure provide s , after 20 February 1998 , the following:

“(1) The [court of] review shall verify in full the correctness of the judgment, irrespective of the grounds [for appeal] indicated by the parties.

(2) The [court of] review [can] revoke or modify the judgment, including [any] part which has not been appealed, as well as in respect to persons who have not appeal ed it , provided there are grounds for that . ”

COMPLAINT S

A. In respect of the applicant ’ s accusations against Mr B.

The applicant complains that the authorities failed to perform an effective investigation and to prosecute Mr B. for having threatened her with a hunting rifle and for having raped her .

B. In respect of the criminal proceedings against the applicant

1. The applicant complains that she was not timely served with the decision of the District Prosecutor ’ s Office of 20 September 1995 to terminate the preliminary investigation against her in respect of the charge that she had falsely incriminated Mr B. of having threatened her with a hunting rifle. This allegedly denied her the right to appeal against it.

2 . T he applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against her were unfair because:

(a) there was a violation of procedure as no preliminary procedure ( дознание ) was performed by the investigative authorities, but only a preliminary investigation ( предварително производство ) ;

( b ) the courts and the investigative authorities did not collect and analyse evidence and witness testimonies that she considered relevant and which would have allegedly exonerated her . In this respect, the applicant relies on Article 6 § 3 (d) of the Convention ;

( c ) her right to a cassation appeal was allegedly violated, because the appeal was drafted and filed by an attorney who was not authorised to do so. She maintains that the attorney was only instructed to act on her behalf at the appeal proceedings before the Regional Court . She complains that the courts should have informed her of this deficiency in his powers so that she could have correct ed it. She claims that as a result of the incomplete cassation appeal filed by the attorney the Supreme Court of Cassation dismissed it and she was in effect denied the right to a cassation appeal .

3. The applicant complains under Article 6 § 1 of the Convention that the courts did not conduct their hearings in camera taking into account the personal matters discussed during the proceedings.

4 . T he applicant complains under Article 6 § 1 of the Convention that she was not tried within a reasonable time, stipulating that the criminal proceedings lasted from 3 August 1994 until 22 March 1999 , a period of almost 5 years.

5 . T he applicant complains under Article 6 § 3 (c) of the Convention that she was denied the possibility to defend herself because no court appointed attorney was provided to her and she lacked sufficient means to retain one.

6 . T he applicant complains under Article 6 of the Convention that the Prosecutor ’ s Offices refused to propose to the courts to reopen the criminal proceedings against her .

7 . The applicant complains that the courts wrongly convicted her under Article 286 § 2 of the Criminal Code because no criminal charges were ever brought against Mr B.

8 . T he applicant complains that from 1994 until 1998 a restriction was imposed on her not to leave her place of residence without authorisation from the Prosecutor ’ s Office, while there was allegedly no danger that she would abscond, obstruct the investigation or commit further offences .

C. I n respect of the civil proceedings against the applicant

T he applicant complains under Article 6 § 1 of the Convention that the civil proceedings were not stayed by the District Court pending the outcome of the proceedings before the Court of Human Rights .

D. I n respect of the criminal libel proceedings

1 . T he applicant complains under Article 6 § 1 of the Convention that the criminal libel proceedings were unfair and that the courts decided wrongly by not convicting the journalist. In particular, she maintains that:

( a ) the courts did not collect and analyse evidence and witness testimonies she considered relevant;

( b ) the judgment of the Regional Court refers to a hearing of 23 September 1999 which never took place or to which she was not duly summoned ;

( c ) she was not summoned to and did not participate in an unspecified number of court hearings .

2. The applicant complains under Article 6 § 1 of the Convention that the courts did not conduct their hearings in camera taking into account the personal matters discussed during the proceedings.

THE LAW

A. Complaint in respect of the applicant ’ s accusations against Mr B.

In respect of the alleged inefficiency of the investigation and the lack of prosecution regarding the applicant ’ s accusation s that Mr B. had raped and threatened her with a hunting rifle , the Court , assuming that an issue arises under the Convention, notes that this complaint was introduced more than six months following the decision of the District Prosecutor ’ s Office of 12 July 1993 to terminate the preliminary investigation against Mr B.

It follows that this complaint has been introduced out of the six months ’ time limit under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

B. Complaints in respect of the criminal proceedings against the applicant

1. Complaint that the preliminary investigation against the applicant was partially terminated

The applicant complains that she was not timely served with the decision of the District Prosecutor ’ s Office of 20 September 1995 to terminate the preliminary investigation against her in respect of the charge that she had falsely incriminated Mr B. of having threatened her with a hunting rifle and that this denied her the right to appeal against it.

Insofar as the applicant may be understood to be complaining that she was not charged or tried for this offence, the Court recalls that Article 6 of the Convention does not require that all preliminary investigations must result in a criminal charge against an individual and that court proceedings must be conducted (see Deweer v. Belgium , judgment of 27 February 1980, Series A no. 35, § 49; Aannemersbedrijf Gebroeders Van Leeuwen B.V. v. The Netherlands ( dec .), no. 32602/96, 25 January 2000 ).

It follows that the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2 . Complaints under Article 6 of the Convention in respect of the fairness of the criminal proceedings

The essence of the applicant ’ s complaint under Article 6 of the Convention is that she did not receive a fair trial.

Article 6 of the Convention provide s as relevant :

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

... ”

T he Court observes that its task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair (see, for example, Mantovanelli v. France , judgment of 18 March 1997, Reports of Judgments and Decisions 1997 ‑ II, pp. 436–37, § 34; Bernard v. France , judgment of 23 April 1998, Reports 1998 ‑ II, p. 879, § 37) .

T he Court considers that taking into account that the guarantees in § 3 of Article 6 of the Convention are specific aspects of the right to a fair trial set forth in § 1, it should consider the applicant ’ s complaints under §§ 3 (c) and 3 (d) together with those under § 1 (see, mutatis mutandis , Laukkanen and Manninen v. Finland , no. 50230/99, § 32, 3 February 2004; Kostovski v. the Netherlands , judgment of 20 November 1989, Series A no. 166, p. 19, § 39).

I n order to ascertain whether the criminal proceedings against the applicant considered as a whole were fair the Court will address the various complaints raised by the applicant in that respect.

(a) Alleged v iolation of procedure

The applicant complains that there was a violation of procedure as no preliminary procedure ( дознание ) was performed by the investigative authorities , but only a preliminary investigation ( предварително производство ) . The applicant does not specify how this alleged violation tainted the proceedings as a whole or how it contributed to them being unfair.

Without considering the merits of this complaint, the Court notes that this complaint was never made at the domestic level. There has therefore been a failure to exhaust the available domestic remedies (see, among many other authorities, the Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports 1996 ‑ IV, p. 1210, § 66) .

( b ) Alleged ins ufficiency of the evidence

The applicant also complains that the courts and the investigative authorities did not collect and analyse evidence and witness testimonies that she considered relevant and which allegedly would have exonerated her. The Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them (see Laukkanen and Manninen v. Finland , no. 50230/99, § 33, 3 February 2004; Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, § 46; Barberà , Messegué and Jabardo v. Spain , judgment of 6 December 1988, Series A no. 146, p. 31, § 68). As noted already, the Court ’ s task is only to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair .

The Court notes that the applicant essentially calls into question the manner in which the courts assessed evidence pointing to her guilt.

The Court observes that the courts based their findings on numerous witness testimonies , the medical records of the applicant, the complaint filed by the applicant against Mr B. and the results of the preliminary investigation against him. The Court finds no indication that the applicant was prevented from properly arguing her case or from submitting her arguments to the courts, the more so as at least before the Regional Court she was represented by counsel. The Court n ote s that the applicant refused to testify and give evidence before the District Court , while before the Regional Court she neither present ed new evidence, nor did she seek witnesses to be re-examined. The factual and legal reasons for the courts ’ judgment s were set out at length and detailed description was made of the reasoning on which the court s relied when making their finding s that the applicant had falsely incriminated Mr B. of having rap ed her . The applicant did not adduce any other evidence capable of casting doubt on the courts ’ findings in this respect. In these circumstances the Court does not find that the national authorities failed to consider evidence such as to bring the proceedings at variance with Article 6 of the Convention.

( c ) Cassation appeal

The Court notes that i n respect of the applicant ’ s complaint against the actions of the attorney, it is incompatible ratione personae with the provisions of the Convention (see, mutated mutandis , X v. Federal Republic of Germany , no. 2413/65, Commission decision of 16 December 1966 , unreported).

In respect of the alleged obligation of the c ourt s to inform the applicant so that she could correct the alleged deficiency in the powers of the attorney, the Court finds that the applicant does not specify how this alleged violation tainted the proceedings as a whole or how it contributed to them being unfair. The Court notes that the applicant never challenged the appeal filed on her behalf n or did she file a separate cassation appeal , if that was in fact her intention and she was not aware of the appeal filed by her attorney, as she claims. In addition, the applicant was duly summoned and participated in the proceedings before the Supreme Court of Cassation . Finally, based on the above and the facts of the case, the Court considers that t here are enough indications that the attorney was in fact acting on the applicant ’ s behalf when he filed the cassation appeal irrespective of whether or not the y had a written agreement to that effect.

( d ) Representation by counsel

T he applicant complains under Article 6 § 3 (c) of the Convention that she was denied the possibility to defend herself because no court appointed attorney was provided to her and she lacked sufficient means to retain one.

The Court observes that in the Convention system the right of a person charged with a criminal offence to free legal assistance is one element, amongst others, of the concept of a fair trial in criminal proceedings (see Quaranta v. Switzerland , judgment of 24 May 1991, Series A no. 205, p. 16, § 27 and Pham Hoang v. France , judgment of 25 September 1992, Series A no. 243, p. 23, § 39 ). Sub-paragraph (c) of Article 6 § 3 attaches two conditions to this right. The first is lack of “sufficient means to pay for legal assistance” and the second is whether in such case the “interests of justice” required that the applicant be granted such assistance.

In the present case the Court notes that the applicant retained an attorney to represent her before the Regional Court and the Supreme Court of Cassation. In addition, she was apparently a teacher in the local school and therefore had some income .

The other issue before the Court is whether the interests of justice required that the applicant be provided with free legal representation at the District Court stage of the proceedings . In answering this question, regard must be had to the severity of the penalty at stake and the complexity of the case (see Quaranta v. Switzerland , judgment of 24 May 1991, Series A no. 205, p. 17-18, § 32-38). T he interests of justice in principle require free legal representation both before and during a hearing on all questions of guilt or innocence ( see Benham v. the United Kingdom , judgment of 10 June 1996 , Reports 1996 ‑ III, § 61-64 ). In addition , once an individual risks a loss of liberty, the interests of justice in principle call for legal representation (see Benham v. the United Kingdom , judgment of 10 June 1996, Reports 1996 ‑ III, § 61 and Quaranta v. Switzerland , judgment of 24 May 1991, Series A no. 205, p. 17-18, § 33).

Even assuming that the applicant should have been provided free legal assistance as she had insufficient means to pay for it herself and the interests of justice required it, because she risked imprisonment of up to five years, the Court finds this complaint inadmissible for the following reasons.

In its case-law , the Court has previously found that such a defect in the fairness of the proceeding can be cured if the applicant has the benefit of legal representation before the second or third instance courts, but only as long as there we re no limits on the scope of the review which may be carried out by such courts (see Quaranta v. Switzerland , judgment of 24 May 1991, Series A no. 205, p. 16, § 37 and, mutatis mutandis , Weber v. Switzerland , judgment of 22 May 1990, Series A no. 177, p. 20, § 39 ) . In the present case, the Regional Court had no such limits imposed on its scope of review. To the contrary it was obliged “ to verify in full the correctness of the judgment, irrespective of the grounds for appeal indicated by the parties” (Article 313 of the Code of Criminal Procedure). Taking this into account and the fact that the applicant was represented by an attorney before the Regional Court , the Court finds that the defect in the fairness of the proceedings was corrected in respect of the applicant at the level of the court of second instance.

The Court find s , therefore, that having assess ed the effect s on the proceedings as a whole of the lack of legal representation of the applicant before the District Court , this does not disclose any appearance of a violation of Article 6 of the Convention .

( e ) Conclusion

Having addressed the alleged violations of the right to a fair trial under Article 6 of the Convention , raised by the applicant, the Court finds that they fail to substantiate any such violation s . In addition , taking into account its findings in respect of the above alleged violations, the Court does not find any indication that the proceedings considered as a whole, including the way in which evidence was taken, were un fair.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Complaint under Article 6 § 1 of the Convention in respect of the public nature of the hearings

The applicant complains under Article 6 § 1 of the Convention that the courts did not conduct their hearings in camera taking into account the personal matters discussed during the proceedings .

The relevant part of Article 6 § 1 of the Convention reads as follows:

“ ... the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. ”

The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6. This public character protects litigants against the secret administration of justice with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society (see , for instance, Riepan v. Austria , no. 35115/97, § 27, ECHR 2000-XII and Pretto and Others v. Italy , judgment of 8 December 1983, Series A no. 71, p. 11, § 21).

Article 6 § 1 of the Convention does provide for exceptions to the rule requiring publicity, but it makes them subject to certain conditions (see , mu t atis mutandis , Le Compte , Van Leuven and De Meyere v. Belgium , judgment of 23 June 1981, Series A no. 43, p. 25 , § 59 ). E xclusions to the general principle to hold public hearing s are only possible if there are grounds to apply one or more of the exceptions specified in Article 6 § 1 of the Convention. Moreover, in such circumstances the authorities are not obliged, but have the right to order hearings be held in camera if they consider that they warrant such a restriction .

The Court observes that the applicant has not indicated what information or data of a private nature was in fact disclosed during the proceedings. The Court notes that the proceedings related to the applicant ’ s false incrimination of Mr B. and her actions related thereto. The information in respect of the alleged rape, abortion and the interpersonal relationships within the applicant ’ s family were only disclosed and assessed in the light of determining her culpability. There is no indication that information of a highly intimate and sensitive nature was in fact disclosed during the proceedings.

Taking the above into account, t he courts did not apparently consider that the nature of the proceedings or the information that may be disclosed therein warranted an exception to the general principle to hold public hearings so such were not ordered and neither the public nor the press were restricted from attending them.

In sofar as it is the applicant who claims that grounds existed to restrict the public nature of the proceedings, the Court considers that it was up to her to make a reasoned request seeking the application of such a restriction . No such request was made in the present case.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4 . Complaint under Article 6 § 1 of the Convention in respect of the length of the criminal proceedings

The applicant complains under Article 6 § 1 of the Convention that she was not tried within a reasonable time.

The relevant part of Article 6 § 1 of the Convention reads as follows:

“In the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ... ”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5 . Complaint under Article 6 of the Convention that the criminal proceedings were not reopened

The Court recalls that according to the established case-law, Article 6 of the Convention does not apply to proceedings for the re-opening of criminal proceedings, given that someone who applies for her case to be re-opened and whose sentence has become final is not “charged with a criminal offence” within the meaning of Article 6 of the Convention (see Erdemli v. Turkey ( dec .), no. 33412/03, 5 February 2004 ECHR; Fischer v. Austria ( dec .), no. 27569/02, ECHR 2003 ‑ VI).

It follows that the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

6 .  Complaint in respect of the punishment imposed on the applicant

The Court considers that it falls to examine this complaint under Article 7 § 1 of the Convention, the relevant part of which provides:

“ ... Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

According to the Court ’ s case-law, Article 7 § 1 of the Convention embodies the principle that only the law can define a crime and prescribe a penalty and prohibits in particular the retrospective application of the criminal law where it is to an accused ’ s disadvantage (see G. v. France , judgment of 27 September 1995, Series A no. 325 ‑ B, p. 38, § 24; S.W. v . the United Kingdom , judgment of 22 November 1995, Series A no. 335 ‑ B, pp. 41-42, § 35).

The Convention organs have previously found that when there has been an amendment of the criminal law subsequent to the commission of an offence Article 7 of the Convention does not guarantee the right to have the most favourable criminal law applied even if the provision at issue had been repealed (see H.K. v. Germany , no. 7900/77, Commission decision of 6 March 1978, Decisions and Reports (DR) 13, p. 70 and Lupander v. Finland , no. 28941/95, Commission decision of 3 December 1997, unreported ) .

In the present case the Court notes that the courts found the applicant guilty of the crime of “ false incrimination for a serious crime ” , as envisaged in Article 286 § 2 of the Criminal Code prior to 1997, a nd imposed a sentence based on that provision . The applicant was never charged n or convicted of the crime of “ false incrimination resulting in a criminal charge ” as envisaged in Article 286 § 3 of the Criminal Code before 1997 and , subsequently , in Article 286 § 2 of the Criminal Code.

The Court notes that the courts applied the regime as it existed prior to the 1997 amendment because they considered it to be less severe to the applicant. Prior to 1997 Article 286 § 2 of the Criminal Code envisaged a sentence of up to five years ’ imprisonment and a public reprimand. After 1997 the general text of Article 286 § 1 of the Criminal Code would have been applicable to the applicant ’ s actions , which provided for a sentence of one to six years ’ imprisonment and a public reprimand.

In view of the above, t he Court considers that in the present case the application of Article 286 § 2 of the Criminal Code, as in force until 1997, does not disclose any appearance of a violation of Article 7 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

7 . Complaint in respect of the restriction of movement imposed on the applicant

The Court considers in the first place that the measure in issue did not amount to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. The mere restrictions on the liberty of movement resulting from special supervision fall to be dealt with under Article 2 of Protocol No. 4 of the Convention (see Guzzardi v. Italy , judgment of 6 November 1980, Series A no. 39, p. 33, § 92 and Raimondo v. Italy , judgment of 22 February 1994, Series A no. 281 ‑ A, p. 19, § 39).

T he relevant part of Article 2 of Protocol No. 4 of the Convention provides the following.

“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

...

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

However , t he Court notes that Protocol No. 4 of the Convention entered into force in respect of Bulgaria on 4 November 2000 .

It follows that the complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

C. Complaint in respect of the civil proceedings against the applicant

The applicant complains that the District Court dismissed the applicant ’ s request to stay the proceedings pending the outcome of the proceedings before the Court of Human Rights .

The Court observes that neither Article 6 , nor any other provision of the Convention , envisage s a right or an obligation by the national authorities to stay proceedings pending the outcome of proceedings before the Court . To the contrary, the exhaustion of the available domestic remedies is a prerequisite for the introduction of a complaint under the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

D. Complaints in respect of the criminal libel proceedings initiated by the applicant

1. Complaints under Article 6 § 1 of the Convention in respect of the fairness of the criminal proceedings

The essence of the applicant ’ s complaint s under Article 6 § 1 of the Convention is that she did not receive a fair hearing. The first question to be determined thus is whether Article 6 of the Convention , on which the applicant relies, applies to such proceedings.

The Court notes that the present case does not concern a criminal charge directed against the applicant. On the other hand, the right to enjoy a good reputation and the right to have determined before a tribunal the justification of attacks on such reputation must be considered to be civil rights within the meaning of Article 6 § 1 of the Convention (see Helmers v. Sweden , judgment of 29 October 1991, Series A no. 212-A, p. 14 , § § 27-30 ) . Accordingly, Article 6 of the Convention is applicable to the proceedings instituted by the applicant in their civil law part.

The relevant part of Article 6 § 1 of the Convention reads as follows:

“In the determination of his civil rights ... everyone is entitled to a fair ... hearing ... ”

In order to ascertain whether the proceedings as a whole were fair or not the Court will address the various complaints raised by the applicant in that respect.

(a) Alleged insufficiency of the evidence

The applicant complains that the courts did not collect and analyse evidence and witness testimonies that she considered relevant.

The Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them (see Laukkanen and Manninen v. Finland , no. 50230/99, § 33, 3 February 2004; Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, § 46; Barberà , Messegué and Jabardo v. Spain , judgment of 6 December 1988, Series A no. 146, p. 31, § 68).

The Court observes that the courts based their findings on sound evidence, notably the judgments in the criminal proceedings against the applicant and the published article. The Court finds no indication that the applicant was prevented from properly arguing her case or from submitting her arguments to the courts. The factual and legal reasons for the courts ’ judgments were set out at length and detailed description was made of the reasoning on which the court s relied when making their finding s that the journalist was innocent of making any defamatory statements as she had simply based her article on the judgment of the District Court of 9 March 1998 . The applicant did not adduce any other evidence capable of casting doubt on the courts ’ findings in this respect.

(b) Participation at hearings

T he applicant complains that the judgment of the Regional Court refers to a hearing of 23 September 1999 which never took place or to which she was not summoned. She also complains that she was not summoned to and did not participate in an unspecified number of other court hearings.

The Court notes that the hearing of the appeal was assigned to a court panel on 11 November 1999 . The only apparent hearing , at which the applicant participated, was set for and conducted on 16 December 1999 . The Court finds no indication that any other hearings were conducted and the applicant has fail ed to substantiate that any such were in fact held in her absence. The indication of th e date of 23 September 1999 , and not 16 December 1999, in the judgment of the Regional Court does not in itself prove that it conducted a hearing without summoning the applicant, especially when it has been shown that the hearing of the appeal was assigned to a court panel only on 11 November 1999. The Courts considers that the reference to 23 September 1999 is more likely to be a clerical error on the part of the Regional Court rather than a n accurate reference to a hearing which took place in the applicant ’ s absence .

(c) Conclusion

Having addressed the alleged violations of the right to a fair hearing under Article 6 of the Convention, raised by the applicant, the Court finds that they fail to substantiate such a violation. In addition, taking into account its findings in respect of the above alleged violations, the Court does not find any indication that the proceedings considered as a whole, including the way in which evidence was taken, were un fair.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Complaint under Article 6 § 1 of the Convention in respect of the public nature of the hearings

The applicant complains under Article 6 § 1 of the Convention that the courts did not conduct their hearings behind closed doors taking into account the personal matters discussed during the proceedings.

The relevant part of Article 6 § 1 of the Convention reads as follows:

“... the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Having in mind its previous findings in respect of the criminal proceedings against the applicant (see section B. 3 above) and the added fact that the information and data disclosed was already in the public domain , the Court finds that the restriction of the public ’ s access to the hearings would not have had the desired result of maintaining the confidential nature of the information.

In any event, based on its previous findings, the Court considers that it was up to the applicant to make a reasoned request to the courts for the hearings to be closed to the public. No such request was made in the present case.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Cou rt unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the length of the criminal proceedings against her ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President